Citation Nr: 9820803
Decision Date: 07/08/98 Archive Date: 07/15/98
DOCKET NO. 97-25 333 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Basic eligibility for a permanent and total disability
evaluation for pension purposes.
ATTORNEY FOR THE BOARD
C. Hancock, Associate Counsel
INTRODUCTION
The appellant served on active-duty-for-training in the
United States (U.S.) Army National Guard of Tennessee from
June 10, 1963, to December 7, 1963, and in the U.S. Army
Reserve from February 19, 1968, to July 20, 1968.
This matter comes before the Board of Veterans' Appeals
(Board) from a July 1995 administrative determination by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Nashville, Tennessee denying entitlement to a non-service
disability pension based on lack of qualifying active duty
wartime service.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that he had active duty from February
19, 1968, to July 20, 1968, where he served with the 5th
Infantry Division at Fort Carson, Colorado. He further
contends that during this time he was preparing to go to
Vietnam.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A. §
7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the appellant's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant’s claim for
eligibility for entitlement to non-service connected pension
benefits has no legal merit.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained by
the RO.
2. The appellant served on active-duty-for-training in the
U.S. Army National Guard from June 10, 1963, to December 7,
1963, and in the U.S. Army Reserve from February 19, 1968, to
July 20, 1968.
3. The appellant does not have qualifying “active”
military service during a period of war.
4. The appellant was not discharged with a service-connected
disability.
CONCLUSION OF LAW
As to the issue of basic eligibility requirements for
nonservice-connected pension benefits, the appellant has not
submitted a claim which has legal merit. 38 U.S.C.A. §§ 101,
1501, 1502, 1521 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.1,
3.2, 3.3, 3.6 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that a determination as to whether
the appellant has submitted a well-grounded claim need not be
addressed. The concept of a well-grounded claim applies to
the character of the evidence presented by the claimant. For
the purposes of this decision, as there is no dispute as to
the evidence, but only to the law and its meaning, the
concept of well grounded is not found to be applicable. See
Sabonis v. Brown, 6 Vet. App. 426 (1994).
Nonservice-connected disability pension may only be awarded
to a veteran of a war who has qualifying service and is
permanently and totally disabled. See 38 U.S.C.A. §§ 1502,
1521 (West 1991). A veteran meets the service requirement if
he or she served in the “active military, naval, or air
service” during the following time periods: (1) for 90 days
or more during a period of war; (2) during a period of war
and was discharged or released from such service for a
service-connected disability; (3) for a period of ninety
consecutive days or more and such period began or ended
during a period of war; or (4) for an aggregate of ninety
days or more in two or more separate periods of service
during more than one period of war. 38 U.S.C.A. § 1521(a),
(j) (West 1991); 38 C.F.R. § 3.3(a)(3) (1997).
Congress has also provided a definition of "period of war."
For VA pension benefit purposes, the term "period of war"
means the Mexican border period, World War I, World War II,
the Korean conflict, the Vietnam era, the Persian Gulf War,
and the period beginning on the date of any future
declaration of war by the Congress and ending on the date
prescribed by Presidential proclamation or concurrent
resolution of the Congress. See 38 U.S.C.A. 1501(4) (West
1991). The Vietnam era has been determined to comprise the
period beginning on February 28, 1961 to May 7, 1975,
inclusive , in the case of a veteran who served in the
Republic of Vietnam during that period. In all other cases,
the Vietnam era has been determined to comprise the period
August 5, 1964, through May 7, 1975, inclusive. 38 C.F.R. §
3.2(f) (1997).
The term "veteran" is defined by law as a person who served
in the active military, naval or air service, and who was
discharged or released therefrom under conditions other than
dishonorable. 38 U.S.C.A. § 101(2) (West 1991); 38 C.F.R. §
3.1(d) (1997). The term "active military, naval, or air
service" includes active duty, any period of active duty for
training during which the individual concerned was disabled
or died from a disease or injury incurred or aggravated in
the line of duty, and any period of inactive duty training
during which the individual concerned was disabled or died
from an injury incurred or aggravated in the line of duty.
38 U.S.C.A. § 101(24) (West 1991); 38 C.F.R. § 3.6 (1997).
In the present case, the issue disputed on appeal is whether
the appellant meets the basic eligibility requirements for
entitlement to nonservice-connected pension benefits.
Specifically, in support of his current claim, the appellant
asserts that his period of service from February 19, 1968, to
July 20, 1968, constitutes active duty, as he was in the 5th
Infantry Division at Fort Carson, Colorado preparing to go to
Vietnam. He further asserts that if not because of his
hardship discharge, which he took in July 1968, he was
prepared to serve the remainder of his 24-month service
obligation.
A copy of a DD Form 214, Armed Forces of the United States
Report of Transfer or Discharge (DD214), received by VA in
September 1997 from the National Personnel Records Center
(NPRC), reveals that the appellant was ordered to “ACDUTRA”
[active-duty-for-training] on June 10, 1963, and was
discharged on December 7, 1963. A copy of a DD Form 214
received by VA in September 1997 from NPRC reveals that the
appellant was ordered to “ACDUTRA” [active-duty-for-
training] on February 19, 1968, and was discharged on July
20, 1968, by reason of a hardship release.
To summarize, the veteran’s first period of active-duty-for-
training, June to December 1963 was not during a period of
war. The veteran’s service from February to July 1968 was in
excess of 90 days and was during a period of war. However,
the service consisted of active-duty-for-training.
Additionally, the evidence of record fails to show that he
was disabled from a disease or injury incurred or aggravated
in the line of duty during this period of service. As per
the aforementioned laws and regulations, neither of his
periods of service is considered requisite military service
for the purposes of establishing basic eligibility for
nonservice-connected pension benefits.
A service department determination as to an individual's
service is binding on the VA, unless a reasonable basis
exists for questioning it. 38 C.F.R. § 3.203 (1997); See
Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). On his
Notice of Disagreement, received by VA in May 1996, the
appellant contended that he had active duty from February
1968 to July 1968. However, he has presented no tangible
evidence to support his contentions or to cast doubt on the
service department’s determination. As the law and not the
evidence is dispositive in this case, the appeal is denied
due to absence of legal merit. Sabonis, supra. The Board is
bound by the law, and so is without recourse but to deny the
veteran’s pension claim.
ORDER
Entitlement to basic eligibility for nonservice-connected
pension benefits is denied.
ROBERT P. REGAN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was
before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans'
Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat.
4105, 4122 (1988). The date which appears on the face of
this decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.
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